ETHICS OPINION 611-1973 RESTRICTION OF EMPLOYMENT

NUMBER 611

QUESTION

 

A new York law firm is general counsel to a European company and its wholly owned United Scares subsidiary. The European company is involved in a proceeding of a specialized nature, and the New York firm proposes, with client’s consent, to forward the matter to a law firm which specializes in that type of proceeding. The latter firm in addition to the specialty, is engaged in general practice.

 

Would it be proper for the law firm to whom the matter is forwarded, to accept, after the conclusion of the proceeding and without the forwarding firm’s knowledge or consent, direct retainers from the client in non- related matters of a general nature, which might well lead to the ultimate substitution of the receiving firm as general counsel?

 

In the event such conduct were deemed proper, would the answer be different if at the time the original matter was forwarded the senior supervising partner of the receiving law firm voluntarily advised the forwarding firm that his firm would act as special counsel in the referred matter only, and would not otherwise represent the client?

 

ANSWER.

 

On the stated facts there is no basis in the Code of Professional Responsibility which would prohibit the receiving attorney from acting as general or special counsel to the client. The selection of counsel is a matter in the discretion of the client, and any contractual restriction on such discretion made by the forwarding and receiving attorneys, either at the time the original matter was forwarded or thereafter, would violate the spirit of the Code. See EC 2-26, EC 2-30, EC 2-31 and DR 2-108.

 

It appears implicit in EC 2-30 that the receiving attorney would be free to accept employment from the client even as to matters in which the forwarding attorney had previously been employed, if the client, even without the concurrence of the forwarding attorney, terminated the prior employment. See N.Y. City 552 (1940).

 

It is of course assumed that the receiving attorney did not in any way directly or indirectly solicit such employment from the client or say or do anything which would discredit the forwarding attorney with the client, DR 2-103; cf, EC 7-37.

 

We express no opinion on the question of law as to the enforceability of an agreement not to represent the client on other matters. However, a lawyer should not induce another lawyer to take action by representations to which he is not prepared to adhere.

 

February 27, 1973